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Czubernat v. University of Phoenix

June 4, 2008


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Donna Czubernat ("Czubernat") filed suit against the Defendant, the University of Phoenix (the "University") pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1) alleging that the University failed to hire her for the position of Enrollment Counselor on the basis of her age. The University moved for summary judgment on Czubernat's claim. For the reasons set forth below, the University's Motion for Summary Judgment is granted.


Czubernat is a 57-year-old woman. Pltf. 56.1 Resp. ¶ 1.*fn1 The University is a private institution of higher learning, which caters to the educational needs of working adults by offering its students graduate and undergraduate degrees as well as certificates and non-credit programs. Pltf. Resp. 56.1 ¶ 2, 5. From May 31, 2006 to June 25, 2006, the University sought to fill six entry-level Enrollment Counselor positions at its Warrenville, Illinois location. Def. Resp. 56.1 ¶ 1. An Enrollment Counselor is responsible, in part, for contacting prospective students and advising those students regarding the University's degree programs as well as facilitating students' enrollment in the University. Pltf. Resp. 56.1 ¶ 7. Applicants were to possess a general knowledge of the higher education market and industry. Pltf. Resp. 56.1 ¶ 7; Def. Resp. 56.1 ¶ 6. The University strongly preferred a Bachelor's Degree, prior experience in an educational institution, and prior customer services, sales, and/or marketing experience. Def. Resp. 56.1 ¶ 6-8.

Once an applicant submitted a resume to the University for the position, the University confirmed that the applicant was minimally qualified. Pltf. Resp. 56.1 ¶ 13. After that initial determination was made, the candidate was required to participate in a group assessment. Pltf. Resp. 56.1 ¶ 13. After the group assessment, the University conducted a personal interview with the applicant. Pltf. Resp. 56.1 ¶ 13. The University would extend an offer only after successful completion of each step of this interview process: the group assessment, the personal interview, and a background check. Pltf. Resp. 56.1 ¶ 13.

The Enrollment Counselor positions were posted and available to be filled by prospective applicants at different times. Def. Resp. 56.1 ¶ 2. Each position was designated by a specific Request for Hire ("RFH") number. Id. In order to be considered for a particular position the applicant was required to apply for a specific RFH.*fn2 Pltf. Resp. 56.1 ¶ 8. Applicants were not considered for any other RFH, even for the same position, unless they applied to each individual RFH.*fn3 Pltf. Resp. 56.1 ¶ 8. Similarly, once an RFH was filled, the unsuccessful applicants for the particular RFH were not automatically considered for any other contemporaneous or subsequent RFH for the same position unless they reapplied for that position.*fn4 Pltf. Resp. 56.1 ¶ 8.

The two Enrollment Counselor positions that were open at the time that Czubernat applied were designated by RFH numbers 067903 and 067904. Def. Resp. 56.1 ¶ 1-2. The remaining four positions, RFH numbers 068238, 068239, 068666, and 068667, were not posted until after Czubernat submitted her application and after she was scheduled for her group assessment. Def. Resp. 56.1 ¶ 1-2.

Czubernat alleges that she did not apply for a specific RFH number; but rather, she posted her resume on Careerbuilder and and then received an email to come to the University for a group assessment. Pltf. Resp. 56.1 ¶ 9. Two representatives of the University attest that Czubernat applied for RFH # 067903 and that the University does not proactively search resumes or contact potential employees posted on Careerbuilder or any other recruiting website nor does it have the ability to do so. Pltf. Resp. 56.1 ¶ 9. Both parties agree that no one told Czubernat that she was applying for a specific RFH number nor that, once rejected, her resume would not be considered for future Enrollment Counselor positions that may open after the date she submitted her resume. Def. Resp. 56.1 ¶ 4. Czubernat does not dispute that she did not specifically apply for the Enrollment Counselor positions posted and approved after she applied. Id.

Mr. Herbert James ("James"), Enrollment Manager of the Warrenville Learning Center, reviewed all of the resumes that the University received for the Enrollment Counselor positions, including RFH # 067903. Pltf. Resp. 56.1 ¶ 11. As Enrollment Manager, James would have been Czubernat's direct supervisor had the University hired her for the RFH # 067903 position. Pltf. Resp. 56.1 ¶ 11. Upon review, James forwarded the resumes of those individuals who met the minimum qualifications for the position to Amy Holecsek ("Holecsek"), the Associate Campus Director of the Warrenville Learning Center. Pltf. Resp. 56.1 ¶ 11. Holecsek invited the minimally qualified individuals selected by James, including Czubernat, to attend the June 13, 2006 group assessment. Pltf. Resp. 56.1 ¶ 12. James approved Czubernat's application even though she did not possess a Bachelor's Degree because he was impressed by Czubernat's work experience. Def. Resp. 56.1 ¶ 9, 10.

On June 13, 2006, Czubernat, along with seven to ten other applicants, attended the group assessment. Pltf. Resp. 56.1 ¶ 14. There, James and Holecsek provided the attendees with additional information about the University and the Enrollment Counselor's duties. Pltf. Resp. 56.1 ¶ 14. The applicants were also asked to give a three minute presentation about themselves during which they were asked to describe their background, education history, and why they wanted to be an Enrollment Counselor at the University of Phoenix. Pltf. Resp. 56.1 ¶ 14.

James and Holecsek were impressed by Czubernat's presentation skills. As a result, they asked Czubernat to complete an application for employment and for a background check at the conclusion of the group assessment,. Pltf. Resp. 56.1 ¶ 16. Czubernat was the only candidate who attended the June 13, 2006 group assessment that was asked to fill out an employment application. Def. Resp. 56.1 ¶ 13. According to James and Holecsek, Czubernat appeared to be over the age of forty, but her age had no bearing on their decision to advance her to the next stage of the process. Def. Resp. 56.1 ¶ 15; Pltf. Resp. 56.1 ¶ 16. Czubernat admits to looking over fifty. Pltf. Resp. 56.1 ¶ 15.

Following the group assessment, Czubernat completed the background check form used by the University which was supplied by an outside vendor. Pltf. Resp. 56.1 ¶ 17. In order to ensure that the background check is accurately completed on the correct individual, there is a space on the form for the applicant's date of birth as well as other personally identifying information. Pltf. Resp. 56.1 ¶ 17. The space for the applicant's year of birth is filled with "x's" and only the day and month of the date of birth are left blank. Pltf. Resp. 56.1 ¶ 17. Although not required by the form, Czubernat voluntarily chose to put her year of birth on the form "out of habit" disclosing for the first time that she was 57. Pltf. Resp. 56.1 ¶ 18; Def. Resp. 56.1 ¶ 16, 18. Once her employment application and background check form were completed, James and Holecsek told Czubernat that she should hear back from the University shortly to schedule the next stage in the application process, the one-on-one interview. Pltf. Resp. 56.1 ¶ 19; Def. Resp. 56.1 ¶ 17.

Unbeknownst to Czubernat, two applicants, Robert Baker ("Baker") and Deane Stanton ("Stanton") were selected by the University for RFH numbers 067903 and 067904 prior to Czubernat's group assessment. Def. Resp. 56.1 ¶ 3. Baker and Stanton's job offers, however, were contingent upon the successful completion of their background checks, and thus, the University continued to conduct group assessments for the same position in the event that either applicant accepted another position or failed the background check. Pltf. Resp. 56.1 ¶ 20-21; Def. Resp. 56.1 ¶ 3. No one advised Czubernat that she was only being considered for RFH 067903 nor did they tell her that she was only being considered for a position in the event that Baker failed his background check. Def. Resp. 56.1 ¶ 11, 12. On June 20, 2006, Baker passed his background check and the University hired him for RFH 067903, the RFH for which Czubernat was being considered. Pltf. Resp. 56.1 ¶ 24. Accordingly, the University did not contact Czubernat for the one-on-one interview. Pltf. Reps. 56.1 ¶ 24. Stanton also passed her background check and the University hired her to fill RFH # 067904, the only other Enrollment Counselor position open and approved at the time that Czubernat applied.

Baker was 44 years old at the time he accepted the Enrollment Counselor position. Pltf. Resp. 56.1 ¶ 22. He had a Bachelor's degree with a double major, previous experience at another university as an admissions adviser, and extensive experience in management. Pltf. Resp. 56.1 ¶ 22. Stanton was 45 years old, had a Bachelor's degree, and previous experience as a Sales/District Relations Representative. Pltf. Resp. 56.1 ¶ 26. In contrast, Czubernat's highest level of education was a high school degree with some classes completed at a community college. Pltf. Resp. 56.1 ¶ 23. While Czubernat had worked as a bankruptcy counselor, an ...

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